SBS: Right to confront: Supreme Court strengthens Sixth Amendment

Jun. 26, 2011

For years, the U.S. Supreme Court held prosecutors could use written laboratory reports without presenting a live witness to testify as to the validity of those results.
Then, in 2004, the court said that -- because the defendant is supposed to have the right to "confront his accusers" -- testimony from an absent witness can be accepted only if the witness is unavailable and the defendant had an earlier opportunity to cross-examine.
Five years later -- over the objections of four law-and-order justices who feared overburdening the justice system -- the court ruled laboratory reports could not be admitted without "a live witness competent to testify to the truth of the statements made."
Thursday, the court took the next step, deciding who that live witness should be.
Writing for the 5-4 majority, Justice Ruth Bader Ginsburg held Thursday that New Mexico drunken driving defendant Donald Bullcoming should have had the opportunity to cross-examine the lab analyst who provided the main evidence in his trial: a report showing his high blood-alcohol level.
The constitutional guarantee means prosecutors must produce the technicians involved in the specific laboratory tests used in the trial, if possible, the high court now holds.
The majority rejected the finding of the New Mexico Supreme Court that the machine that calculated Bullcoming's blood-alcohol level was his real accuser, while the technician who recorded its findings was a "mere scrivener."
The analyst must be called to certify that "he received Bullcoming's blood sample intact with the seal unbroken, that he checked to make sure that the forensic report number and the sample number corresponded and that he performed on Bullcoming's sample a particular test, adhering to a precise protocol." Such "human actions" are "meet for cross-examination," the court holds.
And with good reason. As many as 20 capital murder cases were appealed in the 1990s over autopsies mishandled by a circuit-riding contract medical examiner in more than 40 rural Texas counties. And in the late 1990s, Alan Yurko was jailed in Florida after conviction in a "shaken baby syndrome" case -- until authorities learned the autopsy described a baby of the wrong race. Cross-examination of a living witness could have helped.
Some have expressed surprise at the grouping of justices in the majority, here, as liberals Ginsburg, Sonia Sotomayor and Elena Kagan teamed with sometime libertarians Antonin Scalia and Clarence Thomas.
In fact, though, smaller government advocates on the right and civil libertarians on the left often find a common interest in protecting the rights of the accused against "meat-grinder" justice. It's better, as has been said many times, for 10 guilty men to go free than for one innocent to be convicted in the rush to make prosecutions "more cost-effective."
The court got this one right.
http://www.lvrj.com/opinion/right-to-confront-supreme-court-strengthens-sixth-amendment-124559054.html?ref=054

SIDS: Oregon: Jayden Ortiz From Corpus Christi Died From SIDS

Posted: Jan 5, 2011 3:06 PM by Steven Romo - sromo@kristv.com

OREGON - There's new information on the death of a 10-month-old child who was taken from corpus christi to oregon by his mother. The medical examiner in Washington County, Oregon has determined Jayden Ortiz died of sudden infant death syndrome, also known as SIDS.
Ortiz died unexpectedly on November 22, 2010. The child's paternal grandparents had raised questions regarding the child's death. The Washington County Deputy Medical Examiner tells us the results of the autopsy and toxicology prove Jayden died of natural causes.
http://www.kristv.com/news/child-taken-from-corpus-christi-died-from-sids/

SIDS: Diagnosis of SIDS to be reviewed in North Carolina

 LISA HAMMERSLY - The Charlotte Observer

With the goal of educating families and saving babies' lives, North Carolina's new chief medical examiner is going to re-examine how the state diagnoses the unexpected deaths of sleeping infants.
Dr. Deborah Radisch says she plans to consult with path ologists statewide about how the medical-examiner system should handle the deaths that are now usually labeled sudden infant death syndrome.
She also wants to discuss a federal project under way in five states that aims to better investigate and diagnose these deaths. Those states are finding they record fewercases of SIDS, and more often label the deaths suffocation, cause unknown, neglect or even homicide. 

It's the first time since she took office in late June that Radisch has said she'll study SIDS deaths and related cases. She expects to start after she finishes hiring her staff.
The hope is to "establish consistency in diagnosis of all infant deaths that come through the medical examiner's system," Radisch said in an interview this week. "We want to continue to encourage families to be aware of preventive measures such as safe-sleep practices."
A Charlotte Observer series in June showed that N.C. medical examiners often have applied the SIDS ruling tobabies even when evidence showed they might have suffocated. They were often found sleeping in unsafe situations: with adults on beds or couches, for example, or facedown among pillows and fluffy blankets.
The investigation found that two-thirds of SIDS autopsies in North Carolina between 2004 and 2008 listed risks that raised the possibility of suffocation. The newspaper also found that law enforcement agencies were sometimes frustrated by the SIDS ruling if they thought the case involved neglect or - rarely - homicide. A SIDS ruling, they said, made successful prosecution of infant deaths almost impossible.
About 100 North Carolina infants each year die from SIDS. After years of research, those deaths are still a medical mystery. The label means that doctors don't know why a baby died and that the death was unpreventable. In North Carolina, SIDS also is considered a natural manner of death.
Advocates of safe-sleep practices for infants worry that SIDS diagnoses can be misleading. They want parents to understand that the risk of SIDS goes down when babies are put to sleep on their backs, alone in their cribs, without blankets or pillows that could suffocate them.
Georgia's medical-examiner system is taking part in the federal project coordinated by the Centers for Disease Control and Prevention in Atlanta.
Beoncia Loveless, a medical investigator with the Georgia system, says some people think of the SIDS label as merely an issue of semantics. "But it's important, if you're trying to get a message out to the community," she says. People once thought SIDS deaths "were unpreventable. But many appear to be preventable. It changes your message."
Although doctors still don't know what makes some infants vulnerable to dying in their sleep, they do know that sleep conditions are related, Loveless said. "The chances of that death go up significantly if the baby is in an unsafe environment."
Loveless said that in Georgia, very few sleep-related deaths are labeled SIDS. The term is reserved for a baby that dies unexpectedly in a safe-sleep situation.
Radisch says she won't start the process of examining infant deaths and other issues until she has a full staff, and she's still working to fill three open jobs forforensic pathologists in her Chapel Hill office. She says the pool of qualified applicants is small - about 40 graduate each year, and about 30 pass board examinations. Several states and jurisdictions are trying to hire.
The medical examiner's office is charged with investigating suspicious, unusual or unnatural deaths. North Carolina's Office of the Chief Medical Examiner oversees about 11,000 cases per year and about 4,500 autopsies.
http://www.newsobserver.com/2010/11/07/786502/diagnosis-of-sids-to-be-reviewed.html#ixzz15dTIqqsJ

SIDS: Nort Carolina, causes of death not pursued

Oct. 12, 2010

N.C. infants die every three to four days, on average, with little understanding of what killed them, you'd think the response would be a lot more urgent and considerably more dramatic.
A team of Observer reporters and editors this summer found that medical examiners often classify N.C. children's deaths as sudden infant death syndrome despite possible unsafe sleep conditions and other questions surrounding their deaths. That frequent diagnosis was likely masking the real cause: suffocation in pillows and blankets or even under an adult. The widespread use of that diagnosis slowed the education of parents about safe sleep habits. Law enforcement agents say a finding of SIDS prevents them from prosecuting neglect or other crimes.
The Observer series looked at 554 SIDS autopies over five years and found that authorities frequently fail to investigate the deaths thoroughly. Only about 25 babies, or five percent, were apparently sleeping safely, on their backs in their own cribs without dangerous bedding.
The diagnosis matters, because too-frequent SIDS findings make it harder to educate parents about safe sleeping. And that means we're not preventing as many deaths as we might.
The Observer series told the story of Autumn Brown, who died Nov. 20, 2007, at the age of 10 weeks in Alamance County. Her death was ruled SIDS, but her grandfather thinks she may have been smothered accidentally.
Makayla Peek was one month old when she died in Gaston County three years ago. Her death was also declared SIDS despite suspicions of foul play.
It's cases like these a legislative task force now hopes to minimize with changes in the state's response to child deaths.
Among the changes that the N.C. Child Fatality Task Force, chief medical examiner Deborah Radisch and others are examining:
All new law enforcement officers would be required to go through specialized training on child death scene investigations.
The state would hire trained investigators for regional offices, so all death scenes can be investigated properly.
Police would be urged to use a six-page, state-issued checklist at death scenes, which is now optional.
Those are important, and fine as far as they go. But why train only new law enforcement officers, and not all current ones? And task force co-chair Tom Vitaglione and N.C. Health Director Jeffrey Engel say state budget woes may delay the hiring of trained investigators for regional offices, something we obviously need. Also, why not require police officers to use the state-issued checklist, instead of just encouraging them to?
As long as meticulous investigations of child death scenes are optional, questions will loom about how N.C. infants are dying. And without information, parents and authorities can't address the problem.
We understand times are beyond tight for the state budget. We also know that taking basic steps that will help save babies' lives is money well spent.
http://www.charlotteobserver.com/2010/10/12/1755649/improvement-slowly-on-child-death.html#ixzz13HNkrgyt

SIDS: North Carolina Child Protection Team

NEW HANOVER COUNTY, NC (WECT) - New Hanover County needs some serious help when it comes to how children are cared and provided for, according to the county's Community Child Protection Team, or CCPT.

In an annual report to county commissioners, presented Monday morning, CCPT identified five major issues with child services in the county.

Major problems noted by the team include, among others, a "dramatic decrease" in the quality of mental health services for children as well as the loss of preventative services in New Hanover County when it comes to child abuse and neglect.

The Community Child Protection Team was formed because of a state law established in 1991.  The CCPT is mandated to find and address problems with child services in the county. 

The team is made up of child advocates, citizens-at-large, and representatives from agencies including the Wilmington Police Department, New Hanover County Sheriff's Office, and the Department of Social Services (DSS).  The team, however, is not a division of DSS, but a separate community entity.

Each year, CCPT submits a report to the county commissioners. This year's report will be discussed at a pre-agenda meeting Thursday afternoon and again at the regular board meeting on Monday morning, September 20.

In the report, the CCPT pointed out five problems with New Hanover County's services for children.

First, the team stated the county does not have enough local therapeutic foster homes able to meet the needs of our children.  The lack of foster homes is also evident in regard to medically fragile kids.

Second, the members of the CCPT noted a "dramatic decrease" in the quality of mental health services for children.  They indicated a steady decrease in quality since 2004 and blame, in part, constant policy changes that result in inaccessible or inadequate services for children.

Next, the team addressed funding, saying New Hanover County doesn't have enough money to assist income-eligible families that may be struggling to stay employed or trying to complete education goals.

According to the report, there were 981 families on a waiting list for assistance in New Hanover County as of August 31, 2010.

Another issue tackled by the CCPT deals with child fatalities.  The team stated that too many child deaths are classified as Sudden Infant Death Syndrome (SIDS) by a medical examiner before a thorough investigation is conducted.

The CCPT said it has continually expressed serious concerns about the way child fatalities are handled, and it will continue to push for an autopsy to be performed on every child with a questionable or undetermined death.

Finally, the team expressed that it is "tremendously concerned" with the loss of preventative services in New Hanover County when it comes to child abuse and neglect.  The CCPT cited the economic downturn and rising poverty rates as reasons to expect abuse and neglect to get worse in New Hanover County and elsewhere.

"One more burden and it becomes too much," said CCPT Chairperson, Elizabeth Mandel. "It becomes just the catalyst for them to sink. We want to be there to support them. We can't help everybody. We can't do it alone."

The team is asking for more help from the county and especially the state.

"We're asking for your clout," a team member told the commissioners, who wanted firm numbers on what kind of financial help children's programs in the county need.

The team said it will work on getting solid figures for the commissioners, but in the meantime, asked for help in lobbying state lawmakers to stop making cuts to child services and start rebuilding an ailing system.

At the end of the report, the CCPT pointed out that North Carolina ranks 37th of 50 states when it comes to child well-being, according to the new Annie E. Casey Kids Count report.  North Carolina also ranks 36th out of 50 in a measure of children living in poverty.

"That's not a number that any of us should be proud of," said Mandel.

LaVaughn Nesmith, the director of New Hanover County's Department of Social Services agreed, and emphasized that something needs to be done quickly, with both poverty and child abuse on the rise.

"The end result is death," said Nesmith. "That is not acceptable. Not in a society that we live in."

http://www.wect.com/Global/story.asp?S=13166722

SBS: Texas: New Results Of Autopsy Spur Plea

LISE OLSENSept. 14, 2009,

The Harris County Medical Examiner’s office has quietly rewritten the results of a 1998 autopsy, prompting renewed innocence claims on behalf of a baby sitter sent to prison nearly a decade ago for allegedly shaking a 4-month-old infant hard enough to cause fatal injuries.

The original autopsy classified the baby’s death as a homicide and was used by prosecutors as a key piece of evidence against Cynthia Cash, now 53, a former nurse convicted of fatal injury to a child after 4-month-old Abbey Clements died after being rushed to the hospital from Cash’s home.

But the modified autopsy report made public in a new appeal calls the cause of death “undetermined” and found no evidence of “trauma” in the postmortem exam. Those changes came five years after local officials announced a review of problematic autopsies conducted by a former Harris County associate medical examiner, Dr. Patricia Moore. Moore, who declined requests for comment, left Harris County in 2002 but still works for Southeast Texas Forensic Center, a Conroe-based company that provides forensic work for six counties.

It is at least the fourth time Harris County officials have reclassified a child’s autopsy that Moore originally labeled as a homicide. Two women have been cleared in other cases — including Brandy Briggs, who was jailed at 19 after rushing her baby to the hospital and who spent several years in a prison isolation cell before being freed in 2005. Dr. Luis Sanchez, head of the medical examiner’s office, did not respond to Chronicle questions about Cash’s case or whether he has finished an audit he promised to conduct after finding problems in the Briggs case.

After learning about the new autopsy results, Cash’s husband contacted Briggs’ attorney, Charles Portz, to file an innocence claim on her behalf. The pending appeal asks for her release or a new hearing — though Cash now has only six months left to serve on her seven-year sentence for felony injury to a child. The case is being considered by Harris County District Court Judge Mark Ellis, who oversaw the original trial a decade ago.

Assistant District Attorney Lynn Hardaway said prosecutors remain confident about their case based on other “evidence presented at trial from doctors who thought she was a victim of shaken baby syndrome.”

Conflicting opinions

Abbey Clements received three vaccinations at a checkup a few hours before Cash, her baby sitter, claimed to have found the baby blue in her crib after a nap. Cash had kept Abbey and her brother along with her own son and five other children.

Abbey died at Texas Children’s Hospital. Doctors there later testified that though she did not have any external injuries, she suffered swelling of the brain and retinal hemorrhages — injuries they described as consistent with so-called shaken baby syndrome.

A neurologist expert for the defense testified at trial that he found none of the broken bones, external bruises or other injuries considered to be classic signs of shaken baby syndrome and the girl likely suffered an extremely rare fatal reaction to vaccines. Dr. Richard M. Hirshberg also reviewed the new autopsy and repeated his argument for Cash’s appeal: “It’s my firm belief now as it was during the Feb., 5, 1999, trial that this defendant is innocent.”

The modified autopsy issued in February 2008 says “a diagnosis of trauma cannot be substantiated,” though no other cause of death was determined. The report also says that doctors who testified in Cash’s trial made some “erroneous” conclusions, wrongly describing bleeding patterns found in the examination of the child’s brain as evidence of trauma.

The revised autopsy, however, also says it could not substantiate claims made by defense experts that the baby likely died from anaphylactic shock — a severe allergic reaction to vaccines. Such rare reactions are well documented in medical literature but generally occur soon after a vaccination is administered.

Paul Clements, Abbey’s father, said he had been briefed on the new results but said “one ME changing an autopsy still doesn’t change what we think happened because of all the other evidence presented at the trial.”

Clements said he also bases his conviction that Cash was guilty on his experience of seeing his daughter “right after it happened and discussing it with the doctors in the hospital. They had never seen a baby shaken as badly as Abbey.”

Cash’s husband, Ken Cash, and her attorney, Portz, both claim that Cash never would have been indicted if the autopsy had been conducted correctly in the first place.

“All I want for her is justice,” said Cash, who sold his house to help pay legal fees and raised their young son on his own after his wife was imprisoned. “They railroaded her in that autopsy report. She is innocent.”

The Harris County District Attorney’s office, however, opposes the appeal.

“The Court of Criminal Appeals held that a claim of actual innocence based upon newly discovered evidence should not be overturned lightly and the burden on the defendant who has had error-free proceedings is exceedingly heavy,” the prosecutor’s answer in the case says, later continuing: “There is considerable evidence in the record to support the … conviction.”

lise.olsen@chron.com

MOORE AUTOPSY PROBLEMS:

Dr. Patricia Moore, a former associate medical examiner in Harris County, was repeatedly disciplined for failing to follow procedures and for favoring the prosecution in 1998 and 1999, Harris County personnel records show. She left Harris County in 2002 for personal reasons, but her work on children’s autopsies here continues to be challenged:

• New innocence claim: After a baby’s 1998 death was reclassified from homicide to undermined causes last year, family and an attorney for 53-year-old former baby-sitter Cynthia Cash recently filed an appeal claiming innocence and seeking her release.

• Mother freed in 2005: Moore’s original autopsy called 2-month-old Brandon Lemons’ 1999 death a homicide, but it was reclassified years later as “undetermined.” The new report suggested that the baby may have died from lack of oxygen because of a medical error. Lemons’ mother, Brandy Briggs, was subsequently freed.

• Mother cleared in 2004: Prosecutors dropped charges against another woman originally accused of reckless injury to her newborn after Moore’s autopsy was challenged and the baby’s cause of death was changed to undetermined.

• Other cases questioned: Trenda Kemmerer, a woman convicted in 1997 in another child’s death remains in prison, though the child’s autopsy was changed and Moore reprimanded for failing to show objectivity in the case. And Moore herself changed the results of a Montgomery County child’s autopsy in 2007.

Source:

http://www.chron.com/disp/story.mpl/metropolitan/6617198.html

 

http://medicalmisdiagnosisresearch.wordpress.com/2010/09/18/new-results-of-autopsy-spur-plea/

Child abuse: Indiana

 LIZ SHEPARD September 22, 2010

Port Huron Police Detective Brian Kerrigan held a binder on his forearm, demonstrating the way Scott Syzak showed him he had put oil on his 4-month-old daughter during a bath in 1995.

The detective then violently flipped his arm over, throwing the notebook to the ground, the same way he said Syzak demonstrated he put his daughter down.

The smack of the notebook hitting the ground in District Judge John Monaghan's courtroom seemed to send a tremor through the room, with those watching Syzak's preliminary examination gasping, covering their faces and dabbing away tears.

Kerrigan said that, while Syzak demonstrated how he put his daughter down, he spoke of his frustration with life and difficulties adjusting to life outside of prison at the time of the incident.

Syzak had been charged with abusing a 6-month-old child he was baby-sitting in 1989 in Tuscola County. He was sentenced to 32 to 48 months in prison.

Kerrigan said Syzak also told him during an interview that he did not like to be alone with the 6-month-old.

Syzak, 43, of Hobart, Ind., was bound over to circuit court on a charge of open murder, habitual offender fourth, after about two hours of testimony Tuesday.

In 1995, Syzak and his wife, Candace Syzak, told authorities the baby had fallen while getting a bath from her mother.

Kerrigan said he traveled to Indiana on Aug. 26 to interview Syzak after law-enforcement officials informed Port Huron authorities Syzak had made comments about the death of his daughter.

Kerrigan said Syzak's story of what happened the day his daughter was injured changed. In the first scenario, she had slipped out of his arms. In the later scenario, he had put her down with too much force.

Officials have said Jessica Syzak died of her injuries about a month afterward. The family was living in Port Huron at the time of the child's death.

Richard Anderson, the acting medical examiner in 1995, said he performed an autopsy on the infant.

He said the girl had a large skull fracture and the brain tissue underneath it had disintegrated.

"That is a massive injury," Anderson said, adding his findings were not consistent with a fall of about two feet.

As the doctor detailed the injuries he found on the girl, Syzak looked toward the courtroom windows, his legs constantly moving, making his shackles and the attached chains jingle.

Anderson said that in 1995 he ruled the death might have been caused by a seizure, but that was a direct result of the head injury.

He also found hemorrhaging behind the girl's eyes, a sign of shaken baby syndrome, he said.

Jessica also had nine broken ribs in the process of healing, Anderson said.

"That indicates child abuse," he said.

Anderson said he also believed the scene at the Syzak's home had been staged.

He said Jessica was wearing a blue sleeper, which was very clean.

"That's very unusual for a death scene," Anderson testified.

He said the child also showed signs of rigor mortis, which can take hours to set in after a death.

A circuit court arraignment date has not been scheduled for Syzak.

http://www.thetimesherald.com/article/20100922/NEWS01/9220306/Witness-Syzak-s-stories-changed

Co-sleeping: Virginia: Drug use linked to death of baby

Shawna Morrison
September 01, 2010
Drug use linked to death of baby
A Blacksburg woman said she took drugs before falling asleep in bed with her daughter.
A Montgomery County prosecutor said Tuesday that a Blacksburg woman's drug use and the death of her baby were linked, though he didn't know exactly how to "connect the dots" between them.
Carole Browning, 36, pleaded guilty in May to felony child abuse/neglect and was sentenced Tuesday to 10 years in prison, with all but five months suspended.
Browning's 6-week-old daughter, Caitlyn Browning, died July 10, 2009.
A medical examiner ruled that her cause of death was sudden infant death syndrome associated with co-sleeping, Montgomery County Assistant Commonwealth's Attorney Dean Manor said.
The day and night before Caitlyn died, her mother smoked marijuana and took several drugs, including Adderall, Klonopin, Remeron and liquid methadone.
Browning testified in Montgomery County Circuit Court that she hadn't slept in five days and four nights and took what Manor called "a pharmaceutical cocktail" to get some rest.
She awoke about 4 a.m. and took Caitlyn out of her crib to feed her, then put Caitlyn in bed with herself and two of her other children.
It is likely, she admitted in court, that she rolled over on the baby and wouldn't have been able to respond to any signs of distress because of her drug use.
"I was not thinking clearly," Browning testified. If she hadn't taken the drugs, she said, "things would be different. She would be here more than likely."
At the time, Browning was under a safety plan with the Montgomery County Department of Social Services, which had advised her not to use drugs while caring for her five children, including Caitlyn.
The plan was put into place after Caitlyn's meconium tested positive for marijuana, Harmony Alley with Child Protective Services testified.
Browning was charged a week after Caitlyn's death.
Her other children, who are 4, 6, 7 and 16, were sent to live with her mother in Georgia until December, when they were placed back with Browning.
At the time, however, they were returned to her under a protective order. Browning's boyfriend, Michael Quesenberry, was ordered to have no contact with the children because it was discovered that marijuana was growing in his home, Alley testified.
Browning said Tuesday that Quesenberry has had no contact with the children, but that she is now engaged to marry him.
She testified that Quesenberry stopped using illegal substances at the same time she did, in late August 2009.
Asked by her attorney, I.D. Caudill, how she has changed since Caitlyn's death, Browning said she keeps herself busy during the day with sewing, cleaning and her cats.
She is seeking employment, having repairs done to her home, has taken parenting classes and is continuing to participate in mental health counseling.
"I hope I can continue raising the children that I have," she testified. "I do not plan on ever making a bad choice for them."
Caitlyn's aunt, Vicky Belcher, asked the court for an extended term of probation for Browning as well as continued monitoring by the Department of Social Services to help protect the other children.
Belcher's brother, Carlos Browning, who died in a vehicle crash in October 2008, was Caitlyn's father and Carole Browning's estranged husband. He didn't know she was pregnant.
"He never knew baby Caitlyn and now neither will his family," Belcher read aloud from a victim impact statement. "She has not expressed remorse to my family for her actions on that night."
"This was a very tragic incident that happened on that night" that should have and likely could have been avoided, Circuit Court Judge Bobby Turk said.
He said he thought the safety plan Browning had been placed under "wasn't even thought about" and that she should serve some jail time. After her release, she will spend five years on supervised probation.
Turk said he didn't think he could punish her more "than what you're going to go through," knowing the role she played in her baby's death.
http://www.roanoke.com/news/nrv/wb/258851